Andrew Strom is Associate General Counsel of SEIU Local 32BJ.
All of us have had the experience of the government spending our tax dollars to promote ideas we oppose. Most of us have probably not thought that these expenditures violate the First Amendment’s prohibition against “abridging the freedom of speech.” Supreme Court justices across the political spectrum have unanimously agreed that the government’s own speech is immune from First Amendment challenges. In other words, if you are a pacifist, you do not have a viable First Amendment claim against the federal government for using your tax dollars to promote the military. On the other hand, the Court has held that there is a First Amendment claim when the government requires individuals to subsidize messages they disagree with expressed by a private entity.
The case of Friedrichs v. California Teachers Association rests on this distinction, but it is a distinction that makes little sense. The Friedrichs plaintiffs embrace the quotation from Jefferson that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.” But, if you truly believe that it is tyrannical to compel people to provide financial support for ideas they disagree with, then all taxes are a form of tyranny. The justification given most often for treating the government’s own speech differently from the government compelling subsidization of a private entity’s speech is that the government is “accountable to the electorate and the political process for its advocacy.” But, the government is equally accountable when it compels the plaintiffs in Friedrichs to pay fair share fees. If the electorate thinks that the fair share system is a bad idea, they can vote to change that system.
Recent events in Indiana, Michigan, and Wisconsin demonstrate that this is not merely a theoretical possibility. In the last few years, these states decided to eliminate fair share requirements. The Friedrichs plaintiffs are simply disgruntled because in California they can’t win the argument to repeal fair share. But this places them in no different position than socialists in Texas who object to their tax dollars funding a curriculum that teaches schoolchildren “economics, with an emphasis on the free enterprise system and its benefits.” It is also no answer to say that fair share fees are different from taxes because they are not uniformly imposed upon all citizens. The Supreme Court rejected a similar argument in Johanns v. Livestock Marketing Association, where it upheld a federal program that required beef producers to fund marketing efforts. In Johanns, the Court stated that the First Amendment analysis is not affected when the government raises money through targeted assessments rather than through general taxes.
So, the Friedrichs plaintiffs would have no First Amendment claim if the State of California imposed a special assessment on all schoolteachers and used that money to promote educational policies that they oppose. In light of that, as Will Baude has suggested, if the Court is going to reexamine long settled principles in Friedrichs, it owes us a better explanation of why there is a First Amendment right in the first place.